Andrea Wortzel – Environmental Law & Policy Monitorhttps://www.environmentallawandpolicy.com
Analysis and commentary on developments in environmental and natural resources lawThu, 14 Mar 2019 13:35:40 +0000en-UShourly1https://wordpress.org/?v=4.9.10https://environmentallawandpolicyredesign.lexblogplatform.com/wp-content/uploads/sites/452/2017/08/cropped-cropped-favicon-1-32x32.pngAndrea Wortzel – Environmental Law & Policy Monitorhttps://www.environmentallawandpolicy.com
3232High Court Unlikely to Solve Endangered Species Act Issues in Frog Habitat Casehttps://www.environmentallawandpolicy.com/2018/10/high-court-unlikely-solve-endangered-species-act-issues-frog-habitat-case/
Wed, 10 Oct 2018 16:22:35 +0000https://www.environmentallawandpolicy.com/?p=4058Continue Reading…]]>The U.S. Supreme Court kicked off its new term on Oct. 1 with oral arguments in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service. The case centers around whether and when the U.S. Fish and Wildlife Service (FWS) can designate land unoccupied by a threatened or endangered species as critical habitat for that species under the Endangered Species Act.

In this case, the FWS designated more than 1,500 acres of private land in Louisiana as critical habitat for the endangered dusky gopher frog, despite the fact that no frogs currently occupy the area and have not since 1965. Not only is the frog not present on the Louisiana property, the FWS has acknowledged that it could not survive on the property without modifications — referred to by FWS during oral argument as “reasonable efforts” — being made to support the frog’s survival on the property.

This case has significance not only for the interpretation of the agency’s authority under the Endangered Species Act, but also because of its implications for rule changes recently proposed by FWS relating to critical habitat designations.

]]>Trump Administration Proposes Broad Changes to Endangered Species Acthttps://www.environmentallawandpolicy.com/2018/07/trump-administration-proposes-broad-changes-endangered-species-act/
Sat, 21 Jul 2018 12:44:30 +0000https://www.environmentallawandpolicy.com/?p=4033Continue Reading…]]>On July 20, the U.S. Fish Wildlife Service (“USFWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) released pre-publication versions of three proposed rules that would significantly affect applicability and implementation of the Endangered Species Act (“ESA”). These regulations relate to the process and standards for listing species and designating critical habitat, the scope of protections for threatened species, and the process for consultations with federal agencies under Section 7.

In addition to implementing the Trump Administration’s general deregulatory goals and Executive Order 13777, several of these proposed changes appear directly responsive to negative court precedent from the Ninth Circuit that the Services indicate improperly have extended the ESA beyond its intended scope, while other changes are intended to rollback expansions that were implemented by the Obama Administration.

The package of proposals includes a number of provisions that are intended to streamline and clarify the scope of the ESA, including the ability to use programmatic consultations and proposing to include an expedited consultation process under Section 7. Nevertheless, the most significant and controversial changes likely are those that are focused on shrinking the scope of the ESA, rolling back Obama-era revisions, and responding to negative court precedent. If finalized as proposed, among other changes, these regulatory revisions would:

Remove the blanket “take” prohibition from threatened species;

De-emphasize the role of unoccupied habitat in critical habitat designations by reversing 2016 regulations implemented by the Obama Administration;

Establish a framework for and limit the scope of the “foreseeable future” for purposes of threatened species listings;

Allow economic impacts to be identified – though not considered – in listing decisions;

Narrow the definition of adverse modification to further de-emphasize unoccupied critical habitat in the Section 7 consultation process; and

Clarify that the environmental baseline is not part of the action to be evaluated as part of Section 7 consultations and to propose a limiting definition that would better explain how to perform consultations for ongoing actions.

These changes, if finalized as proposed, would represent a significant departure from historical application and scope of the ESA, especially to threatened species. The changes also are intended to clarify and explain the Section 7 consultation process as well as the listing and critical habitat designation process, which could provide additional certainty and clarity to the regulated community on these important issues to project development. Comments on all three proposals will be due 60 days after the proposals are published in the Federal Register.

]]>USFWS Scales Back Need for Incidental Take Permits for Habitat Modificationhttps://www.environmentallawandpolicy.com/2018/05/usfws-scales-back-need-incidental-take-permits-habitat-modification/
Thu, 10 May 2018 12:08:16 +0000https://www.environmentallawandpolicy.com/?p=3969Continue Reading…]]>On April 26, 2018, the U.S. Fish and Wildlife Service (“FWS”) issued a memorandum addressing the need for an incidental take permit (“ITP”) under the Endangered Species Act (ESA) for the modification of listed species’ habitat (“ITP Memo”). As background, under the ESA, the “take” of an endangered species is prohibited. This prohibition has been extended to threatened species through a blanket 4(d) rule. In certain circumstances, take that is not purposeful and occurs incidental to some other action can be authorized through the issuance of an ITP.

As defined in the ESA and in FWS’s regulations, take includes harming or harassing a species where such impacts have the potential to cause a significant adverse effect on the species. In some instances, impacts to the habitat of a listed species have been determined to be so significant that they cause the take of that species, and ITPs have been issued to address such habitat impacts. However, the amount of habitat modification that rises to the level of “take” has not always been applied consistently by various FWS regions.

Signed by Principal Deputy Director Gary Sheehan and directed to all the Regional Directors, the ITP Memo seeks to provide consistent, clear guidance to potential permittees on whether and when habitat modification would trigger the need for an ITP as a “take.” As an initial matter, the ITP Memo makes clear that the decision whether to obtain an ITP is that of the applicant. FWS staff are not authorized to require an ITS for habitat modification. Instead, the ITP Memo emphasizes that it is the applicant’s responsibility to assess the risk of a project’s threat to nearby listed species. FWS staff are to act in an advisory role.

The ITP Memo then considers the level of habitat modification necessary to constitute a take under the ESA, and therefore warrant an ITP. After reviewing the FWS’s past changes in the interpretation of the term “harm,” the ITP Memo specifies that, in a habitat modification context, the term is limited to modifications that “significantly impair essential behavior patterns,” so as to result in “actual injury” to the listed species. Moreover, the ITP Memo suggests that to qualify as harm, permanent impairment of listed species’ essential behavior patterns is necessary, not just temporary effects, citing to 46 Fed. Reg. 54748 (Nov. 4, 1981).

The ITP Memo lays out three explicit elements that applicants should evaluate to determine whether a project will harm a species under the ESA:

1. Is the modification of habitat significant?
2. If so, does that modification also significantly impair an essential behavior pattern of a listed species?
3.And, is the significant modification of the habitat, with a significant impairment of an essential behavior pattern, likely to result in the actual killing or injury of wildlife?

According to the ITP Memo, if the habitat modification associated with the project does not affect a listed species in all three of these ways, then it will not be considered to harm a species and, as such, an ITP is not needed.

On April 2, 2018, the U.S. Fish and Wildlife Service (“USFWS”) submitted three proposed rules to the Office of Management and Budget (“OMB”), which is charged with reviewing every final and proposed federal agency rule before its publication in the Federal Register. These proposals, if implemented, will significantly change USFWS’ implementation of the Endangered Species Act (“ESA”).

Based on unofficial reports, it appears the first proposal would revoke the 1978 Blanket Section 4(d) Rule. 50 C.F.R. § 17.31. The text of the ESA only prohibits killing, capturing, or otherwise taking species listed as endangered. 16 U.S.C. § 1538(a)(1). In 1975, the USFWS issued a Blanket 4(d) Rule extending these protections to threatened species, and a judicial challenge to the Blanket 4(d) Rule was dismissed in a controversial D.C. Circuit opinion in 1993. Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt, 1 F.3d 1 (D.C. Cir. 1993). If the Blanket 4(d) Rule is revoked, specific 4(d) rules would then need to be developed for threatened species for the ESA Section 9 “take” prohibition to apply to these species.

The second proposal would rollback the USFWS’ current rules for listing/delisting species and designating critical habitat. See 50 CFR Part 424. Given past agency statements, this rollback will most likely be aimed at revoking the 2016 Critical Habitat Rule, which remains controversial and, up until recently, was the subject to multi-state litigation in federal court. The controversy regarding the Rule originates in its provisions that expand the USFWS’s authority to designate land unoccupied by a listed species as critical habitat. Further, the Rule grants USFWS the authority to designate critical habitat even if the land does not yet contain the biological factors necessary to support the listed species.

According to the OMB notice, the third proposed rule will “revise” the agency’s “interagency cooperation regulations,” and “clarify and improve” Section 7 consultations. The USFWS issued new regulations concerning interagency cooperation in 2016, so the proposal could change those requirements. However, the exact subject for these changes remains unclear.

The text of the proposed rules has not yet been released, but should become available on or before the expiration of OMB’s 90-day review period. After OMB’s review and approval, the proposed rules will be published in the Federal Register, presumably with an opportunity for interested parties to comment. For further questions regarding these proposed rules or their implications, please contact Angela Levin, Andrea Wortzel, or Rich Pepper.

]]>Environmental Groups Set to Challenge WOTUS Rule Delay under Endangered Species Acthttps://www.environmentallawandpolicy.com/2018/02/environmental-groups-set-challenge-wotus-rule-delay-endangered-species-act/
Tue, 20 Feb 2018 13:20:32 +0000https://www.environmentallawandpolicy.com/?p=3902Continue Reading…]]>Last week, the Center for Biological Diversity, Water Keeper Alliance, and a coalition of other organizations served a Notice of Intent to Sue the U.S. EPA and Army Corps of Engineers (the “Agencies”), alleging the Agencies’ delay in implementing the Obama-era Waters of the U.S. (“WOTUS”) Rule violated the Endangered Species Act.

As background, on February 6, 2018, the Agencies published in the Federal Register the so-called “Applicability Date Rule,” which formally postponed – until February 2020 – the date on which the WOTUS Rule would take effect. See Definition of “Waters of the United States” – Addition of an Applicability Date to 2015 Clean Water Rule, 83 Fed. Reg. 5200. The Trump administration had announced its intentions to abandon the WOTUS Rule and promulgate a new rule on the definition of “waters of the United States.” The Applicability Date Rule aims to give the Agencies the time to complete that process.

The environmental groups’ Notice of Intent to Sue asserts the Applicability Date Rule violates Section 7 of the Endangered Species Act (“ESA”) because the agencies finalized the Rule without consulting with the Fish and Wildlife Service and the National Marine Fisheries Service to prepare a Biological Opinion. The Notice of Intent by the environmental groups is a prerequisite to formally sue the Agencies under the ESA. If a suit were filed under the ESA, it would join other lawsuits lodged by a number of states and other organizations challenging the Applicability Date Rule on procedural and substantive grounds, including a case in the Southern District of New York and one in the District of South Carolina.

]]>Trump Administration Reveals Long-Awaited Infrastructure Planhttps://www.environmentallawandpolicy.com/2018/02/trump-administration-reveals-long-awaited-infrastructure-plan/
Fri, 16 Feb 2018 19:51:20 +0000https://www.environmentallawandpolicy.com/?p=3894Continue Reading…]]>On Monday February 12, President Trump unveiled his long-awaited infrastructure plan. According to President Trump, our country’s infrastructure “is in an unacceptable state of disrepair, which damages our country’s competitiveness and our citizens’ quality of life.” While some view the plan as a step toward streamlining an environmental review process that could delay a project unnecessarily, others worry the proposal could curtail the authority federal agencies exercise over environmental reviews pursuant to the National Environmental Policy Act (NEPA).

The plan calls for $200 billion to be spent rebuilding roads, bridges, highways, railways, waterways, and other infrastructure over the next ten years. That money will come from cuts to other programs (particularly within the Department of Transportation) and is not intended—at least as proposed—to come from new revenue streams. According to President Trump, the proposed changes will generate approximately $1.5 trillion in new infrastructure investment.

In addition to addressing “unmet rural infrastructure needs” and empowering state and local authorities, the hallmark of the plan is the proposal to expedite environmental reviews conducted pursuant to NEPA. President Trump has stated on many occasions that the process for completing environmental review for infrastructure plans is too cumbersome and drawn-out. The new plan proposes to have environmental reviews completed in no more than two years, no matter the size, scope, or complexity of the proposed project. The two-year timeline includes 21 months to complete the actual review and 3 months for an agency to make a permit decision.

To accomplish this goal, President Trump has proposed a “one agency, one decision” policy, under which one federal agency will lead the review process for each permit. Other federal agencies may sign the Record of Decision (ROD) at the end of the review process, but not serve as cooperating agencies like they may have done in the past, a role that gave them much more involvement in the review itself. The proposal also directs the CEQ to review and revise its regulations to streamline the NEPA process.

In addition to recommending reforms to the environmental review process, the proposal also suggests making changes to judicial review of decisions made pursuant to the NEPA to “avoid protracted litigation and to make court decisions more consistent.” For example, President Trump proposes to limit injunctive relief to “exceptional circumstances” and to establish a uniform statute of limitations of 150 days for decisions and permits on infrastructure projects to be challenged.

Notably, the plan also proposes to change EPA’s authority to participate in and impact NEPA reviews. For example, a provision of the Clean Air Act allows EPA—if it’s a cooperating agency—to provide comments on draft and final environmental impact statements. The new plan, however, proposes to eliminate that provision of the Clean Air Act. Similarly, the plan proposes to eliminate EPA’s Clean Water Act authority to veto a Section 404 permit under the Clean Water Act. While these proposals could have significant effects on EPA’s involvement in the NEPA process, they would also require legislative action from Congress.

Although the 55-page plan includes many detailed proposals for reforming the environmental review process, there are still many details to be developed and many remaining unknowns.

]]>U.S. Supreme Court Agrees to Hear Challenge to Designation of Unoccupied Habitat as Critical Habitat Under ESAhttps://www.environmentallawandpolicy.com/2018/01/u-s-supreme-court-agrees-hear-challenge-designation-unoccupied-habitat-critical-habitat-esa/
Fri, 26 Jan 2018 21:49:34 +0000https://www.environmentallawandpolicy.com/?p=3873Continue Reading…]]>The scope and definition of critical habitat under Section 4 of the Endangered Species Act has been a controversial subject. In 2012, the U.S. Fish and Wildlife Service designated 6,477 acres of land in Louisiana (including 1,600 privately-owned acres) as critical habitat for the dusky gopher frog, despite the fact that the frogs have not been seen in the state for decades. Timber company Weyerhauser Co. and private landowner Markle Interests LLC filed suit challenging that designation. Subsequent to the critical habitat designation for the dusky gopher frog, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”) promulgated new critical habitat rules that authorized, among other things, the designation of areas where a species was not actually present as critical habitat for that species. Thus, the outcome of this case has significant implications for these 2016 rules.

On January 25, 2018, the U.S. Supreme Court granted certiorari to hear the case. The Court will be reviewing the Fifth Circuit Court of Appeals’ decision upholding the critical habitat designation. The Fifth Circuit found that the plaintiffs had not established the Services’ decision to designate critical habitat was arbitrary and capricious. The Services designation determined that the land designated in Louisiana “was essential for the conservation of the dusky gopher frog,” because it contained unique ephemeral ponds which are the only habitats that can support the rare frog. The Fifth Circuit approved the Services’ conclusion that “a designation limited to the frog’s present range would be inadequate.” The case is expected to be argued during the Supreme Court’s next term.

]]>Trump Administration Narrows the Scope of the Migratory Bird Treaty Acthttps://www.environmentallawandpolicy.com/2018/01/trump-administration-narrows-scope-migratory-bird-treaty-act/
Tue, 02 Jan 2018 14:15:27 +0000https://www.environmentallawandpolicy.com/?p=3816Continue Reading…]]>On December 22, 2017, the U.S. Department of Interior (DOI) reversed course and issued a Memorandum interpreting the scope of criminal liability under the Migratory Bird Treaty Act (MBTA) and its applicability to “incidental takings,” which the Memorandum defines as a death or other “take” that “results from an activity, but [that] is not the purpose of that activity.” In short, the Memorandum concludes that criminal liability under the MBTA should not be interpreted to extend to incidental takes, and instead only applies to “affirmative actions that has as their purpose the taking or killing of migratory birds, their nests, or their eggs.” This Memorandum will provide significant needed clarity to renewable energy projects and many other industries that perform activities with the potential to indirectly, and non-purposefully, impact migratory birds during development, construction, or operation.

The Memorandum formally withdraws and replaces a Memorandum issued in the last days of the Obama Administration, which had concluded that criminal liability under the MBTA should apply to incidental takings. The new Memorandum relies on text of the MBTA, its purpose, as well as legislative history to support its about-face. It also acknowledges the existence of a split of judicial authority on the issue, noting that “Courts of Appeal in the Second and Tenth Circuits, as well as district courts in at least the Ninth and District of Columbia Circuits, have held that the MBTA criminalizes some instances of incidental take,” while “Courts of Appeal in the Fifth, Eighth, and Ninth Circuits, as well as district courts in the Third and Seventh Circuits, have indicated that it does not.” These cases addressed the accidental killing of birds from oil pits, power lines, and other equipment.

Issued on behalf of the DOI Solicitor, the Memorandum effectively forecloses the possibility of criminal prosecution under the Trump Administration for the deaths of migratory birds that occur incidentally during the development, construction, or operation of otherwise lawful activities. Moreover, theoretically, DOI’s issuance of this Memorandum also removes any jurisdiction by the U.S. Fish and Wildlife Service to impose avoidance, minimization, or mitigation measures for migratory birds on such parties, though it remains to be seen how regional offices will view their roles with regard to migratory birds going forward.

]]>USFWS Seeks Comments on Compensation Goals in Recently Issued Species Mitigation Policieshttps://www.environmentallawandpolicy.com/2017/11/usfws-seeks-comments-compensation-goals-recently-issued-species-mitigation-policies/
Mon, 20 Nov 2017 13:15:09 +0000https://www.environmentallawandpolicy.com/?p=3790Continue Reading…]]>Previously, we reported on the U.S. Fish and Wildlife Service’s (“USFWS”) issuance of the final ESA Compensatory Mitigation Policy (“ESA-CMP”), the first comprehensive treatment of compensatory mitigation under the Endangered Species Act. Endangered Species Act Compensatory Mitigation Policy, 81 FR 95316 (Dec. 27, 2016). The policy formalizes the Services’ shift from project-by-project to landscape-scale approaches to planning and implementing compensatory mitigation. We also reported on the Services’ issuance of a final revised Mitigation Policy in November 2016 intended to serve as an overall umbrella strategy under which more detailed Service sub-policies or guidance documents covering specific activities would be issued. U.S. Fish and Wildlife Service Mitigation Policy, 81 FR 83440 (Nov. 21, 2016). Both policies focus on using mitigation to achieve a “net conservation benefit.”

Last week, on November 6, 2017, the Services requested public comment on the portions of the Mitigation Policy and the ESA-CMP relating to the “net conservation benefit” goal. Mitigation Policies of the U.S. Fish and Wildlife Service; Request for Comments, 82 FR 51382 (Nov. 6, 2017). According to the Services, the comments received on both policies will inform whether and how the Services will revise the policies. Specifically, the USFWS asked that comments “specifically address the advisability of retaining or removing references to net conservation gain from the Services’ overall mitigation planning goal within each policy.” Commenters may submit comments to one or the other docket based on the specific policy of concern (the Mitigation Policy or the ESA-CMP). The deadline for submitting these comments is January 5, 2018. This notice begins the process of implementing certain of the actions outlined for the Services in the Department of Interior’s Final Report: Review of the Department of the Interior Actions that Potentially Burden Domestic Energy (82 FR 50532), released on November 1, 2017 and prepared to comply with Executive Order 13783, Promoting Energy Independence and Economic Growth, March 28, 2017.

Troutman Sanders has formed a new group, Species Strategies and Solutions (S3), which will track policy, regulatory, legislative, and litigation developments regarding federally-protected wildlife and plants. Initiatives to address infrastructure projects, and how those initiatives relate to species-related review requirements, will also be featured. S3 will be focused primarily on national-level species-related developments that have the potential to affect construction and operation of projects in those sectors. S3 is not a lobbying or advocacy group; rather, its purpose is to facilitate a better understanding of the issues associated with compliance with the Endangered Species Act, and strategies for addressing those issues.

Membership in S3 will include the following benefits:

Receipt of quarterly newsletters highlighting recent developments on the regulatory, legislative, policy, and litigation front, as well as case studies of recent permitting examples when available. These newsletters will include an assessment of how such developments are likely to affect permitting and project development, and strategy recommendations for addressing those developments.

Access to a members-only website including copies of the quarterly newsletters, with referenced documents, key policy and guidance documents issued by the Services and action agencies (where relevant), and copies of project-level permitting documents (to the extent made available by members).

Comparison of approaches to permitting, consultation and mitigation across regions.

Invitation to semi-annual meetings (with telephone option), including Q&A sessions with federal and relevant state government officials, opportunities to collaborate with S3 leadership and other members to develop best practices for project development, and in-depth analysis of recent developments.